This week the Trump administration walked back guidances issued under President Obama that advised schools to allow trans students access to bathrooms that aligned with their gender identity. The move came in the form of a letter from the Departments of Justice and Education stating that the federal government sees trans students' rights as a state and district level issue, not as a part of federal non-discrimination law.
Fusion spoke to Demoya Gordon, Staff and Transgender Rights Project Attorney at Lambda Legal, a non-profit legal LGBTQ rights group. The group was involved in the landmark marriage equality case Obergefell v. Hodges and represents several transgender clients, including students taking their school districts to court over bathroom access and discrimination.
Gordon explained the significance of the letter and what the challenges ahead look like for trans students, especially with a trans student's case, Gloucester County School Board v. Gavin Grimm, going before the Supreme Court this year.
The following interview has been edited and condensed for clarity.
From your perspective, how damaging to trans students’ rights is the letter from the DOJ and DOE?
I just want to start out by making it very clear that the letter doesn't change the law. Title IX protects students from sex discrimination in all forms and that continues to be the case even after the letter. However, the letter is cruel to transgender students. Because what it does, I believe intentionally, is create confusion about that and invite schools to discriminate against transgender students. Which is a very important issue because we know that for a lot of transgender people it is vitally important—it's a matter of life or death for some people given the rates of suicide and suicidal ideation among transgender people, including transgender youth. And a big part of that is being forced to live a lie. To live as someone that you are not, which contributes to gender dysphoria for a lot of transgender people. So it is a very important issue for schools to be respectful and to acknowledge the humanity and the gender identity of every student, transgender or not.
This guidance could potentially have really devastating effects by nudging schools who are either on the fence or don't understand the law or just don't want to do the right thing. It really invites them to continue or to start discriminating against transgender students. But any schools who feel emboldened by this letter to start violating the law should know that Lambda Legal is ready and willing to file lawsuits to protect transgender students' rights.
Does the letter have any legal authority or what other authority does it have?
It does not have any legal authority. That letter should not be granted any deference and should not be seen as authoritative. It goes against what Title IX requires, so just based on that alone it has no authority. The law remains, the law is, and the law protects transgender students from discrimination in school.
Given that that letter doesn't have any legal authority, how were the guidances under Obama helpful to trans students?
It is and has been the case that Title IX, along with other federal level anti-discrimination laws, that use the word "sex" include any discrimination based on sex-based characteristics, including gender identity. That is and has been the law. There has been confusion about this among school administrators and even among transgender people who weren't clear about what their rights were. So it was important for the Department of Education, like any other agency, to do this. They do this all the time—they put out guidance to instruct regulated bodies and the general public about what the law is. So the guidance letter that the Obama administration put out didn't create any law. What it did was the very proper thing for administrative agencies to do, which is to explain to the public what the law requires. And that's why that was important.
Why is the case that's going before the Supreme Court this year, Gloucester County School Board v. Gavin Grimm, important for trans people?
It's very important that the Supreme Court, being the highest court of the land, affirm what many other federal level appellate courts have already said, which is that federal anti-discrimination law, including Title IX, protects transgender people. It protects anyone from sex-based discrimination, which includes discriminating against someone because they're transgender or because of their gender identity. So having the Supreme Court either affirm that or come to a 4–4, in which case the Fourth Circuit opinion would stand I think… which is that transgender people are no less protected by Title IX than anyone else.
Despite not having any legal authority, can this letter have an influence on how that case plays out?
It really shouldn't. There's no support for it. When the Obama administration put out that guidance, that guidance was based on Title IX itself, which provides protection, and also by years of case law that is built up reaffirming and establishing that that's the case. This letter on the other hand is not built on anything.
What sorts of questions and issues are people coming to you with at the moment?
Lambda Legal has had a steady flow over time of requests for help from transgender students who are facing different kinds of discrimination. There are unfortunately several school districts out there who aren't abiding by the law. There are quite a few who are but there are also quite a few that aren't. So we've always gotten a steady flow of those requests for help. But it certainly has gone up in the last month, and even just since Wednesday, I got an email with a summary of several requests for help that we've gotten from transgender students across the country.
What are the most urgent areas this year for your organization?
The central priorities continue to be the same, but the thing about this administration is it seems like they're signaling that they feel empowered to beat up on some of the most vulnerable people in our society. And I think currently Lambda Legal is going to prioritize being there, speaking out against that kind of bullying of people who are already oftentimes marginalized and downtrodden.
How can people support those efforts?
Donations are always great but another thing that's helpful to us is that if there are trans students out there facing discrimination, they should reach out to us. We just launched an online portal that transgender students can use to put in their information and that goes straight to us so we can help them. That's something that we definitely want people to know: If you or someone you know is experiencing discrimination, certainly do reach out to us. And the other thing people can do is speak up. Speak out. I think this administration seems to be picking people who they think it will be less politically costly for them to pick on. Because they view people as not having much political power, or support, or a voice. I think people need to speak out and say no. Don't come for any of us. Don't come after anyone in our communities. We're going to stand up and speak out on behalf of any of these communities that you come after. Whether it's immigrants, refugees, transgender students who are just trying to make it through school, this is not right.